German national flag in Berlin

Last week the German newspaper, Süddeutsche Zeitung, published an article detailing a preliminary draft for a new immigration law in Germany.  Although the draft is not publicly available, the newspaper revealed that the new immigration law is set to be approved by Angela Merkel’s cabinet on December 19, 2018.  According to Süddeutsche Zeitung the key aspects of the law are as follows:

  • Any foreign national who signs an employment contract and meets qualification requirements (or their equivalent) will be permitted to work in Germany.  The new draft would strip away a key requirement of the current law – no longer requiring a “priority check” of whether a German or EU citizen is available to fill the same position.
  • Skilled workers will be provided the opportunity to move to Germany for a period of six months to search for employment.  Skilled workers will be issued a residence permit that provides permission to work or to seek employment.  Applicants will be required to demonstrate sufficient knowledge of the German language, the ability to pay for the cost of living in Germany, and the attainment of “equivalence” of their qualification (e.g., academic or other credentials).
  • The draft law also contains certain provisions governing refugees, including the ability to work in Germany for two years after having completed their qualification training in Germany.

Additional details are expected to be made publicly available once the new law is approved.

According to a Financial Post article, US Customs and Border Protection (“CBP”) permanently barred a Vancouver man with ties to the marijuana industry from entering the United States on November 14, 2018.  The individual, who invests in a Canadian cannabis business, was traveling from Vancouver to Las Vegas to attend a cannabis convention and tour a marijuana facility.  According to the article, when CBP learned that the individual “was going down to tour the marijuana facility and that he was an investor in marijuana, they gave him a lifetime ban.”

Under 8 U.S.C. § 1182(a)(2)(C) of the Immigration and Nationality Act, an individual is inadmissible to the United States if they are, or have been, “an illicit trafficker in any controlled substance…or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so.”  While investors in the Canadian marijuana industry are generally admissible to the United States according to a CBP statement revised in October 2018, an individual may be determined to be inadmissible if they are traveling to the United States for reasons related to the marijuana industry.  The Government of Canada’s website reiterates CBP’s inadmissibility warning.

The media has reported news of at least one other cannabis investor receiving the same bar earlier in 2018.

Central American Refugees, South Texas
A district court orders DHS to process all migrants reaching the U.S.-Mexico border, as 7,000 migrants, including women and children, reach Tijuana and San Diego.

A federal judge has barred President Trump’s recent asylum ban, now forcing the administration to accept all migrants crossing the southern border who seek protection, rather than limit asylum requests to U.S. ports of entry. As of last evening, Judge John Tigar of the U.S. District Court of Northern California issued a temporary restraining order that will require the U.S. Customs and Border Patrol to process all individuals crossing the California, Arizona, and Texas border. The bar will remain until a scheduled hearing to be held on December 19, when the judge will revisit the court’s view of a permanent injunction.

The judge’s bar quickly halts the administration’s new rule, and the U.S. Citizenship and Immigration Services’ accompanying policy guidance, which limit asylum pleas to official ports of entry between the United States and Mexico. The administration stated the restriction was necessary to protect U.S. national security from the migrant caravan, as 7,000 migrants, mainly from Honduras, began to arrive in Tijuana over the weekend.

The U.S. district court opinion describes the Congressional intent to offer asylum to all applicants, whether at designated ports of arrival or not, as explicitly cited under 8 U.S.C. § 1158(a)(1) of the Immigration and Nationality Act.

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Mayer Brown attorneys, including partner Paul Hughes, filed a lawsuit in the US District Court of the Middle District of North Carolina, challenging the legality of the August 9, 2018 USCIS policy memorandum on the accrual of unlawful presence for F, J, and M visa holders.

If an individual accrues more than 180 days of unlawful presence, she is subject to a 3-year reentry bar. That bar grows to 10 years if the individual is unlawfully present for 365 days or more. Previously, USCIS calculated unlawful presence as beginning the day after an immigration officer or immigration judge determined that the holder of an F, J, or M visa is out of status. That policy provided necessary notice to individuals, providing them an opportunity to cure any status violation prior to the imposition of a reentry bar. This policy has controlled for more than 20 years.

On August 9, USCIS issued a policy memorandum that purports to create a fundamentally different policy regarding unlawful presence. Now, USCIS will backdate unlawful presence, beginning the clock on the date of the factual situation which rendered an individual out of status. Thus, when an immigration officer or judge determines that an individual is out of status, the result is an automatic 3- or 10-year reentry bar if more than 180 days have elapsed from the underlying factual circumstances, which is often the case.

Plaintiffs include Haverford College, The New School, Guilford College, and Foothill-De Anza Community College District, among others.  The universities argue that the revised policy is “intentionally designed to impose tens of thousands of reentry bars” of up to 10 years on holders of visas typically granted for academic purposes.  The complaint states that now it is “impossible for an individual to know with certainty what conduct will trigger such a reentry bar. An individual may commit conduct that he or she has no reasonable way of knowing will later cause an USCIS officer or immigration judge to later declare him or her ‘out-of-status,’ and—because of the new policy of backdating—will be immediately subject to a reentry bar once that decision is made.”

Read more here

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In an article appearing in Law360, Lisa Pino offers expert analysis on the key points from USCIS’s new Notice to Appear (“NTA”) policy.  In the article, Pino notes that although the new NTA policy does not currently impact employment-based petitions, it nevertheless “is of concern to unauthorized immigrants.”  Pino writes that “unless applicants seeking immigration benefits are confident that their respective applications will be approved, their chances and risk of facing an NTA and a subsequent deportation proceeding in court have now significantly grown.”  Read the article here.

In June 2018, USCIS circulated a new policy memo providing guidance on when cases should be referred for deportation proceedings and when Notices to Appear (“NTAs”) should be issued in instances where applicants are deemed inadmissible or deportable.  Implementation of the new policy was delayed as USCIS determined how exactly the new policy would be put into action.  While we have yet to see how implementation will take shape, the policy is now in force and will be incrementally rolled out.

Law360 discusses what the new policy means for foreign nationals whose status-bearing applications are denied.  The article quotes Paul Virtue who states that the memo is “clearly designed to ensure that a decision not to issue an NTA should rarely be taken.”  Read the article here.  USCIS has also released Q&As from its September 27, 2018 stakeholder teleconference on the new policy memo.

Prime Minister Theresa May’s announcement on October 1, 2018 that Britain will not continue to give EU nationals preferential immigration treatment after Brexit heralded the future of immigration between the EU and Britain. Britain will decide what the immigration requirements are for EU nationals. Speculation on whether Britain will adopt “US-style” visas for travel and work has been considered, and May herself already indicated that waivers of visa requirements may continue on a reciprocal basis with countries (or regions) with which Britain agrees to these requirements.

The principal import of the Prime Minister’s announcement is that after 2020, EU nationals will need to apply for formal admission requirements in advance of moving to Britain, and may also face travel visa or pre-registration requirements. What these requirements will ultimately translate to will depend on continued negotiations and the input of key business sectors  and stakeholders such as the Migration Advisory Committee.   Continue Reading Theresa May’s October 1 Announcement Heightens Concerns About EU Nationals’ Travel and Work Authorization After Brexit

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On September 27, USCIS provided live feedback about the agency's implementation plans for a new Notice to Appear policy, which will significantly expand deportation categories. The policy change also places USCIS, the administrative immigration arm of DHS, in the role of enforcer, a function that ICE normally supports.

On September 27, the USCIS Office of Public Engagement hosted a live teleconference to inform the public how the agency will implement its new policy, or policy memorandum (PM), issued on June 28, 2018, “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.”  The policy aligns USCIS operations with Executive Order 13768: Enhancing Public Safety in the Interior of the United States.

The NTA requires the recipient to appear in court before an immigration judge, and is the first step in removal, or deportation, proceedings. After a brief overview of the new NTA policy, which supersedes previous 2011 USCIS guidance on the same topic, USCIS presented a Q&A series from more than 100 questions received by stakeholders. The USCIS teleconference participants represented a broad spectrum of the agency’s divisions including USCIS Field Operations, Policy, and Office of Chief Counsel.  USCIS also announced that the agency will soon host a public webpage about the new NTA policy implementation, and that information conveyed during the teleconference would soon be available in the USCIS electronic reading room.

The top 10 takeaways of the USCIS teleconference regarding its new NTA policy implementation include the following points: Continue Reading Top 10 NTA Takeaways: USCIS Goes Live to Reveal Implementation Plans of New DHS Deportation Policy

Montage Of Blurred Pedestrians Walking And Several Clock Faces
On September 27, USCIS will reveal how the agency plans to execute its new NTA guidance, which will likely widen the pool of immigrants facing deportation proceedings.

As anticipated by an earlier blog post, and after a couple of months of internal planning, USCIS is ready to announce its implementation plan related to the agency’s new Notice to Appear (NTA) policy guidance.  On Thursday, September 27, Mayer Brown’s Global Mobility and Migration practice will eagerly join a live USCIS teleconference entitled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens”.  The dialogue will enable our attorneys to immediately learn and question how broadly USCIS plans to interpret its upcoming interpretations of NTA guidance that may warrant deportation proceedings.  As previously shared, USCIS officers will soon issue NTAs on a wider range of cases where an individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States. The USCIS teleconference should also share more insight regarding the Department of Homeland Security’s removal priorities per Executive Order 13768, Enhancing Public Safety in the Interior of the United States. More to come from The Mobile Workforce on this topic.